Deepak Suryanarayanan et al.Download PDFPatent Trials and Appeals BoardDec 4, 201913928290 - (D) (P.T.A.B. Dec. 4, 2019) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 13/928,290 06/26/2013 Deepak Suryanarayanan SEAZN.798A 6827 79502 7590 12/04/2019 Knobbe, Martens, Olson & Bear, LLP AMAZON TECHNOLOGIES, INC. 2040 Main Street Fourteenth Floor Irvine, CA 92614 EXAMINER JAKOVAC, RYAN J ART UNIT PAPER NUMBER 2445 NOTIFICATION DATE DELIVERY MODE 12/04/2019 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): SEAZN.Admin@knobbe.com efiling@knobbe.com jayna.cartee@knobbe.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte DEEPAK SURYANARAYANAN, EUGENE MICHAEL FARRELL, DAVID EVERARD BROWN, ERIC JASON BRANDWINE, and AJIT NAGENDRA PADUKONE ____________ Appeal 2018-000523 Application 13/928,290 Technology Center 2400 ____________ Before JEAN R. HOMERE, JASON V. MORGAN, and MICHAEL M. BARRY, Administrative Patent Judges. BARRY, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–20, which constitute all of the pending claims. See Final Act. 1 and Appeal Br. 24–27 (Claims App’x).2 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use “Appellant” to refer to the “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Amazon Technologies, Inc., a subsidiary of Amazon.com. Appeal Br. 3. 2 We refer herein to the Appeal Brief filed July 5, 2017 (“Appeal Br.”), the Answer delivered electronically August 23, 2017 (“Ans.”), the Reply Brief filed October 20, 2017 (“Reply Br.”), the Final Office Action delivered Appeal 2018-000523 Application 13/928,290 2 Introduction Appellant’s claimed subject matter relates to “generation and management of a remote computing session between one or more client computing devices and a virtual desktop instance hosted by one or more remote data center computers of a Program Execution Service (PES) platform.” Spec. ¶ 16. Independent claim 1 is representative of the claims on appeal: 1. A system comprising: one or more computers of a Program Execution Service (PES) including processors and memory, the memory including instructions that, upon execution, cause the one or more computers to: receive a request from a client computing device to access a virtual desktop instance, the request identifying a user of the client computing device and a type of virtual desktop instance, wherein the type of virtual desktop instance identifies one or more of resources associated with an operating system hosted by the virtual desktop instance or a set of applications to be executed by the operating system; identify a virtual desktop instance of the type corresponding to the request; determine a specified latency threshold; select, from a plurality of available computing devices, a host computing device operable to host the virtual desktop instance, wherein the selected host computing device has a communication latency with the client computing device lower than the specified latency electronically December 2, 2016 (“Final Act.”), and the Specification (“Spec.”) and Figures (“Figs.”) from the Drawings filed June 26, 2013. Appeal 2018-000523 Application 13/928,290 3 threshold, and wherein the selected host computing device is configured to host a number of instantiated virtual desktop instances that satisfies a specified number; and provide, to the client computing device, access to the identified virtual desktop instance hosted on the host computing device, the identified virtual desktop instance personalized according to desktop personalization information for the user and including one or more operating system folders mapped to storage in a data store for the user. Appeal Br. 24 (Claims App’x). REFERENCES AND REJECTIONS The Examiner relies on the following references: Name3 Number Published Filed Banjo US 2007/0136195 A1 June 14, 2007 Mar. 28, 2006 Khandekar US 7,577,722 B1 July 28, 2011 Jan. 27, 2010 Ghosh US 2012/0041970 A1 Feb. 16, 2012 Aug. 12, 2010 Katiyar US 2012/0260248 A1 Oct. 11, 2012 Apr. 7, 2011 Das US 2013/0073703 A1 Mar. 21, 2013 Sept. 15, 2011 Ismael US 2014/0337836 A1 Nov. 13, 2014 May 10, 2013 Kulkarni US 8,904,081 B1 Dec. 2, 2014 May 8, 2012 The Examiner rejected claims 1, 2, 4–8, 11, 12, 16, and 18 under 35 U.S.C. § 103 as obvious over the combined teachings of Das, Ismael, and Ghosh. Final Act. 3–8. The Examiner rejected claims 3, 9, 10, 13–15, 17, 19, and 20 under 35 U.S.C. § 103 as obvious over the combined teachings of Das, Ismael, Ghosh, 3 All reference citations are to the first listed inventor’s surname. Appeal 2018-000523 Application 13/928,290 4 and either Kulkarni, one or more of Kulkarni, Banjo, Katiyar, and Khandekar. Final Act. 9–13. ANALYSIS We review the appealed rejections based on the issues identified by Appellant, and in light of the arguments and evidence produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential). Arguments not made are waived. See 37 C.F.R. § 41.37(c)(1)(iv). Appellant separately argues error in the rejections of claims 1 and 16, presenting no substantively separate arguments for claims 2–15, 17–10.4 See Appeal Br. 10–23. Based on Appellant’s arguments, claims 2–15, 19, and 20 fall with claim 1, and claims 17 and 18 fall with claim 16. See 37 C.F.R. 41.37(c)(1)(iv). 1. Claim 1 Appellant contends the Examiner errs in rejecting claim 1 because the cited references fail to teach or suggest select[ing], from a plurality of available computing devices, a host computing device operable to host the virtual desktop instance, wherein the selected host computing device has a communication latency with the client computing device lower than the specified latency threshold, and wherein the selected host computing device is configured to host a number of instantiated virtual desktop instances that satisfies a specified number, as recited (hereafter, the “disputed selecting limitations” or “disputed selecting step”). See Appeal Br. 10–12. Appellant further contends that 4 Independent claims 5 and 11 recite limitations that are commensurate with the argued limitations of claim 1 and stand rejected for the same reasons as claim 1. See Appeal Br. 25–26 (Claims App’x); Final Act. 6–7. Appeal 2018-000523 Application 13/928,290 5 “[a]bsent improper hindsight reasoning based on the teachings of the present application, one skilled in the art would not be motivated to combine the teachings of Das, Ismael, and Ghosh to produce the system of Claim 1 as alleged.” Appeal Br. 12; see also id. at 13–14. Appellant’s arguments are unpersuasive. a. The Disputed Selecting Step The Examiner finds that the combined disclosures of Ismael and Ghosh teach the disputed selecting limitations. See Final Act. 4–6. In particular, the Examiner finds Ismael teaches “a selected host computing device is configured to host a number of instantiated virtual desktop instances that satisfies a specified number,” as recited, and Ghosh teaches “select[ing], from a plurality of available computing devices, a host computing device operable to host the virtual desktop instance[, wherein the] selected host computing device has a communication latency with a computing device lower than the specified latency threshold,” as recited. Final Act. 5, 6 (citing Ismael ¶ 64; Ghosh ¶¶ 26, 30). Appellant contends “Das contains no teachings or suggestions with regard to selection of a host computing device.” Appeal Br. 10. This is unpersuasive because, as discussed above, the rejection does not rely on Das for this requirement. Appellant also contends: Ismael is limited to disclosing the control of the instantiation of virtual machine instances on preselected host computing de- vices based a count of the number of virtual machine instances already instantiated on the host computing device. Ismael is silent regarding a selection of a host device from a plurality of physical computing devices based on the number of instantiated Appeal 2018-000523 Application 13/928,290 6 virtual machine instances. Ismael therefore cannot teach or sug- gest a Program Execution Service that can “select, from a plu- rality of available computing devices, a host computing device operable to host the virtual desktop instance, . . . wherein the selected host computing device is configured to host a number of instantiated virtual desktop instances that satisfies a specified number,” as recited. Appeal Br. 11 (emphasis added). This is unpersuasive because the rejection relies on Ghosh, not Ismael, for teaching “select[ing], from a plurality of available computing devices, a host computing device operable to host the virtual desktop instance,” as recited. The test is whether the claimed subject matter would have been obvious to those of ordinary skill in the art in light of the combined teachings of the cited references. In re Keller, 642 F.2d 413, 425 (CCPA 1981). Appellant further contends: Ghosh does not contain disclosure related to selecting a computing device for hosting a virtual desktop based on hosting “a number of instantiated virtual desktop instances that satisfies a specified number.” Therefore, Ghosh, alone or in combination with Das or Ismael, cannot teach or suggest “select, from a plurality of available computing devices, a host computing device operable to host the virtual desktop instance, . . . wherein the selected host computing device is configured to host a number of instantiated virtual desktop instances that satisfies a specified number,” as recited. Appeal Br. 12 (emphasis added). This is similarly unpersuasive, because the rejection relies on Ismael, not Ghosh, for teaching that “the selected host computing device is configured to host a number of instantiated virtual desktop instances that satisfies a specified number,” as recited. One cannot show nonobviousness by attacking references individually when the Appeal 2018-000523 Application 13/928,290 7 rejection is based on a combination of references. In re Merck & Co. Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). b. Hindsight and Motivation to Combine Appellant contends that “[a]bsent improper hindsight reasoning based on the teachings of the present application, one skilled in the art would not be motivated to combine the teachings of Das, Ismael, and Ghosh to produce the system of Claim 1 as alleged.” Appeal Br. 12. In particular, Appellant contends that, because Ismael “specifically appl[ies] to virtual machines operating in a malware detection system,” “[t]he teachings of Ismael would not be applicable to the distributed virtual machine provisioning systems and methods, including selecting from a plurality of possible host devices, as recited in the claims.” Id. at 13; see also Reply Br. 6 (“Because the claims are specifically drawn to ‘selection of a host device,’ one skilled in the art would have no reason to look to the teachings of Ismael because Ismael contains no disclosure related to methods of selecting a host device.”). Thus, Appellant’s hindsight/motivation argument hinges on whether Ismael constitutes analogous art to Appellant’s invention. Two separate tests define the scope of analogous prior art: (1) whether the art is from the same field of endeavor, regardless of the problem addressed and, (2) if the reference is not within the field of the inventor’s endeavor, whether the reference still is reasonably pertinent to the particular problem with which the inventor is involved. In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004). “A reference is reasonably pertinent if, even if in a different field from that of the inventor’s endeavor, it is one which, because of the matter with which it deals, logically would have commended itself to an inventor’s attention in Appeal 2018-000523 Application 13/928,290 8 considering his [or her] problem.” In re Clay, 966 F. 2d 656, 659 (Fed. Cir. 1992); see also KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 402 (2007) (explaining, in the context of combining the teachings from references with different primary purposes, that “[i]t is common sense that familiar items may have obvious uses beyond their primary purposes, and a person of ordinary skill often will be able to fit the teachings of multiple patents together like pieces of a puzzle”). Here, Ismael explains its teachings “relate[] to a system, apparatus and method that optimizes the allocation of resources used by multiple virtual machine instances.” Ismael ¶ 1. Appellant does not persuade us of error in the Examiner’s determination for why Ismael is reasonably pertinent to claim 1: Appellant’s invention is drawn to selection of a host device upon which to run a virtual machine. Ismael is useful in that endeavor as the teachings of Ismael provide an advent- ageous form of resource management control related to host machines – such as ensuring that the number of instantiated virtual machines on a selected host are within threshold boundaries. Ans. 8–9 (citing Ismael ¶ 64 (explaining, inter alia, that its provisioning logic manages instantiating virtual machines (VMs) “and monitoring the number of VM instances concurrently utilized within the MCD [(malware content detection)] system [] to ensure that the number of VM instances do not exceed a predetermined VM threshold”)). Regarding Appellant’s contention that the Examiner’s rejection constitutes “improper hindsight reasoning” (Appeal Br. 12), we note “[a]ny judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning, but so long as it takes into account only Appeal 2018-000523 Application 13/928,290 9 knowledge which was within the level of ordinary skill at the time the claimed invention was made and does not include knowledge gleaned only from applicant’s disclosure, such a reconstruction is proper.” In re McLaughlin, 433 F.2d 1392, 1395 (CCPA 1971). Further, while a reason to combine teachings from the prior art “may be found in explicit or implicit teachings within the references themselves,” it also may come from “the ordinary knowledge of those skilled in the art, or from the nature of the problem to be solved.” WMS Gaming Inc. v. Int’l Game Tech., 184 F.3d 1339, 1355 (Fed. Cir. 1999) (citing In re Rouffet, 149 F.3d 1350, 1357 (Fed. Cir. 1998)); see also Perfect Web Techs., Inc. v. InfoUSA, Inc., 587 F.3d 1324, 1329 (Fed. Cir. 2009) (explaining that “an analysis of obviousness . . . may include recourse to logic, judgment, and common sense available to the person of ordinary skill that do not necessarily require explication in any reference”). Ultimately, “rejections on obviousness grounds cannot be sustained by mere conclusory statements; instead, there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006); KSR, 550 U.S. at 418 (quoting Kahn). Here, the Examiner determines that Ismael’s advantageousness for virtual machine resource management provides the motivation to combine Ismael’s teachings with those of Das and Ghosh. See Final Act. 5 (citing Ismael ¶ 64). Appellant does not persuade us of error in this determination, because it meets the standard set forth by Kahn and KSR. c. Claim 1 Conclusion Accordingly we sustain the § 103 rejection of claim 1. In doing so, as consistent with the foregoing, we adopt as our own the findings and Appeal 2018-000523 Application 13/928,290 10 reasoning of the Examiner as set forth in the rejection and in the Answer. We also, therefore, sustain the rejections of claims 2–15, 19, and 20, for which Appellant offers no substantively separate arguments. 2. Claims 16 and 18 Dependent claim 16 recites “receiv[ing] a subsequent request from the computing device to access a different type of virtual desktop instance.” Appeal Br. 27 (Claims App’x). Appellant contends the Examiner errs in finding Das teaches that recitation of claim 16, because “[n]othing in the cited portions of Das discloses receiving a subsequent request from the same computing device for a different type of virtual desktop instance.” Appeal Br. 22; see also id. at 23 (arguing error in the rejection of dependent claim 18 for the essentially the same reason). The Examiner responds that Das teaches the disputed limitations of claim 16 (and also claim 18) by its disclosure of presenting a user “with multiple desktops from which to select, e.g. an engineering desktop, a finance desktop, etc.” Ans. 8 (citing Das ¶¶ 78–80). Appellant replies that “even if Das disclosed a subsequent request, the cited portion of Das suggests that a subsequent request would be for the same type of virtual desktop instance, rather than for a different type, as recited.” Reply Br. 7. Appellant’s argument is unpersuasive. Appellant construes the disclosure of Das too narrowly. By teaching that a user may select from multiple available types when the user requests a virtual desktop, an ordinarily skilled artisan would have understood Ismael to at least suggest that a subsequent request will be for a different type of virtual desktop. “A person of ordinary skill is also a person of ordinary creativity, not an automaton.” KSR, 550 U.S. at 421. Appeal 2018-000523 Application 13/928,290 11 Accordingly, we sustain the rejections of claims 16 and 18. We also, therefore, sustain the rejection of claim 17, for which Appellant offers no substantively separate arguments. DECISION The Examiner did not err in rejecting claims 1–20 as unpatentable under 35 U.S.C. § 103. CONCLUSION In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 2, 4–8, 11, 12, 16, 18 103 Das, Ismael, Ghosh 1, 2, 4–8, 11, 12, 16, 18 3 103 Das, Ismael, Ghosh, Kulkarni 3 9, 10, 13, 14 103 Das, Ismael, Ghosh, Banjo 9, 10, 13, 14 15, 17 103 Das, Ismael, Ghosh, Banjo, Katiyar 15, 17 19 103 Das, Ismael, Ghosh, Banjo, Khandekar 19 Overall Outcome 1–20 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation